Transcript: Attorneys Debate CIA Leak Case on 'FNS'

The following is a transcribed excerpt of "FOX News Sunday," Oct. 23, 2005.

CHRIS WALLACE, HOST: Next Friday, the grand jury investigating the CIA leak case (search) ends its term. And the big question in Washington is whether top White House officials will be indicted.

Here to discuss the case are Abbe Lowell (search), one of Washington's top criminal defense lawyers, and Robert Ray (search), the former independent counsel who investigated the Monica Lewinsky case and Whitewater during the Clinton years. He joins us from Fox News headquarters in New York.

And gentlemen, welcome.

FORMER INDEPENDENT COUNSEL ROBERT RAY: Thank you.

WALLACE: I want to start by showing you and our viewers something the special prosecutor, Patrick Fitzgerald (search), did this week. And here it is. Take a look.

After almost two years, he opened a Web site for posting documents, just one week before the grand jury expires.

And here's one of the first documents he put up: a letter from early 2004 in which he was given authority to prosecute, not just the original CIA leak, but also crimes "with intent to interfere with your investigation, such as perjury, obstruction of justice."

Mr. Lowell, reading this and all the other tea leaves surrounding this case, do you expect indictments this week?

CRIMINAL DEFENSE ATTORNEY ABBE LOWELL: If I were a tea-leaf reader, I would say that it's not a good sign when a prosecutor does, in the three days before his grand jury expires, is to create a Web site and announces the vehicle to announce something.

I think people better be ready for charges.

WALLACE: Mr. Ray, from your experience, does this look like a prosecutor is setting the table for indictments?

RAY: Well, he's certainly shoring up his mandate, to make it clear that it not only relates to the underlying reason why he was appointed.

But obviously, like any investigation, going back to Watergate and before, a principal focus of a prosecutor's efforts in an investigation is to determine whether or not there are efforts to obstruct it and perjury and/or false statements.

WALLACE: All right. We're going to get to that question in just a moment. But let's talk about the alleged crime that was the basis for this entire case in the first place.

The issue here is whether someone tried to discredit one of the critics of the administration, former ambassador, Joe Wilson, by revealing that his wife, Valerie Plame (search), worked at the White House.

Mr. Ray, the real purpose of this law -- it was passed in the early '80s, but it was based on actions in the mid-70s -- was to protect CIA agents' lives in case they were outed.

Are we, instead, here, criminalizing political conduct -- hardball politics, to be sure, but criminalizing political conduct?

RAY: It's very difficult to say.

And the allegations that relate to whether or not there were efforts to obstruct this investigation raise, potentially, two inferences: one, an effort to cover up wrongdoing with regard to just this sort of conduct but also, equally plausible, an effort to cover up because there were political ramifications to the administration should it be disclosed that high members of the administration were speaking with the press in an effort to do political damage to a political opponent.

WALLACE: Obviously, I misspoke, and Valerie Wilson worked at the CIA, not the White House. But let me ask you about that, Mr. Lowell, this idea that we're criminalizing political conduct.

LOWELL: This is, without being hysterical in Washington, where hysteria reigns, is a scary moment, because there's no official secrets act in Washington and the United States. What's happened here is, depending on what he brings. And we don't know. I mean, if it's the obstruction side, it's one thing.

But if he's actually going at the leak, then the question is, is he using the CIA informant statute? Is he using that espionage act of 1917, which is in a case that I'm working on? Or is he using something else? And here's the problem. There's no doubt government officials should not release information that they shouldn't, that deals with national security. That's a given. The problem is, we live in a country in which virtually everything is put into the category of national security information.

And as long as it's over-securitized, as long as there's too much of it, to then give a prosecutor the discretion as to when he or she is going to prosecute, puts too much power in a prosecutor, where it does spill over into possibly political motives, First Amendment motives, other motives, and not for the real legitimate law- enforcement reason those statutes were passed.

WALLACE: Let me turn to the subject, Mr. Ray, that we began with. And that is the possibility that there will not be an indictment here for the underlying crime, the leak, but rather for something that happened during the investigation: obstruction of justice, making a false statement, perjury. Any problem with that?

RAY: It's what gets you in trouble. We've, you know, how far back in your history do you have to go to recognize that it's not the crime, it's the coverup? That's the legitimate focus of any prosecutor's investigation. There is nothing more damaging to the proper administration of justice than efforts to undermine a legitimate law-enforcement inquiry as to, you know, what happened to uncover the facts, and then to make an appropriate prosecutorial judgment.

And I would disagree with Abbe to the extent that, you know, that's what we ask responsible prosecutors to do. And it's not a foregone conclusion that there will be a prosecution. We expect prosecutors to exercise reasonable judgment once they uncover all the facts.

But in doing that, if there are efforts along the way to obstruct an investigation, that is always taken seriously. And very few would question the legitimate federal interest in bringing a prosecution, if that's in fact what happened.

LOWELL: Chris, let's get on common ground. If there's obstruction of justice or perjury, that's a tried and true crime. It's something that needs to be pursued. That's not what we're talking about. We're talking about this vast array of laws that will now make it potentially a crime for people to leak information that should have never been in the national security domain to speak to. And in our country...

WALLACE: But wait a minute. You don't think that if there's someone who's in the CIA, and has at some point been an undercover agent, that's not a legitimate...

LOWELL: If we're talking about the Plame Wilson issue, and it was the identity, and it was in that period of covert operation, absolutely. But look at the other cases. Look at the (inaudible) case that I'm involved in. It's just gotten to the point that one case then sets a precedent, where others come in thereafter, and then it gets to be the proverbial slippery slope.

Whereas, if you have too much classified information and prosecutors decide who in the community gets prosecuted, it's too much discretion. I'm not talking about obstruction. I'm not talking about perjury. I'm talking about making leaks into crimes.

And when that's the case, we don't know that President Nixon violated the Constitution. We don't know that there were no weapons of mass destruction. It can be very chilling to the media, and journalists and the American population ought to pay close attention to if this statute is invoked for this set of conduct.

WALLACE: Mr. Ray, according to reports, Karl Rove and Lewis Libby, the chief of staff to the vice president, Vice President Cheney, initially failed to tell investigators about all their contacts with the reporters. They say they forgot and that they have since cleared up the record. Do prosecutors believe in honest mistakes?

RAY: Sure, they do. They're people, too. And they make reasonable judgments about what mixed motives there may be with regard to underlying conduct. Look, no one is interested, certainly federal prosecutors, in prosecuting technical violations of the law where there really isn't a substantial federal interest to be vindicated in bringing a prosecution.

And that's not to say that, you know, every technical violation of the leak of classified information or the disclosure of identity is worthy of prosecution. I mean, that's what Pat Fitzgerald is having to sort out now. What were the motives? What happened here? Why was classified information leaked, if it was? And what was the purpose in doing that?

And if, you know, the prosecutor comes to the conclusion that there was orchestration here or a conspiracy, or some concerted effort to do something improper outside the bounds of the law, I think he will give serious, you know, consideration to bringing a charge. And that, you know, decision, of course, is affected by, necessarily affected by whether or not there are efforts along the way to impair or impede or mislead investigators.

WALLACE: Mr. Lowell, we're beginning to hear the same thing we've heard over the years about independent counsels, that when you put a high-powered prosecutor, assign them to a single case that he's involved with for years and spending millions of dollars, that there's a lot of pressure on him to do something. Is that a problem?

LOWELL: It is a problem. Every time that a prosecutor doesn't have the normal checks and balances, and what are they? Three levels of supervision going up to the deputy and the attorney general. A budget cap so that he or she can't just spend and spend and spend. That's one of the reasons that the independent counsel law no longer exists.

Look, it's appropriate in some cases. This one. You had to have somebody out of the mainstream of justice. But the flaws in the independent counsel structure still exist if there's no oversight and unlimited funds. I mean, I don't really know that independent counsels need Web sites.

WALLACE: Mr. Ray, as the independent counsel in the Bill Clinton case, you made a plea deal with Bill Clinton in which he agreed that he had testified falsely, but you decided not to indict Mrs. Clinton for her role in the White House travel firings. Did you feel pressure beyond the facts of the case just to do something because so many millions of dollars and so many years had been spent on it?

RAY: If I did feel pressure, you have to resist it. And I have every confidence that Pat Fitzgerald will make a responsible decision. You don't bring a prosecution and use the serious tools that prosecutors have if you're paying attention and you're responsible, unless you've given some real considered judgment to whether or not it's appropriate to do that kind of damage. And if it means notwithstanding the pressure, to simply walk away, then that's what you do.

Now, I mean, I think here, let's remember that Pat Fitzgerald is a career federal prosecutor. In some sense he's insulated from the political process because he's been given this special appointment as his special counsel. But he's also appointed by President Bush to the position of United States attorney for the northern district of Illinois. And he was recommended to that position by then-Senator Peter Fitzgerald. So I think it would be rather difficult, under the circumstances, to attack the motives of the prosecutor.

And I think, as I know Pat Fitzgerald well because we worked together in the southern district of New York, he will make a responsible judgment here. And if that judgment is to walk away from this, notwithstanding the pressure, notwithstanding the money that may have been expended, I have every confidence that he will do so, unless he thinks that there is an important federal interest to be vindicated and that a prosecution is worthwhile.

WALLACE: Mr. Ray, Mr. Lowell, we have to end it there. Thank you both for coming in today. And we're all going to have a lot to watch this week. Thank you both.